Girton v. Daniels

• Citation: 129 P. 555,35 Nev. 438
• Decision Date: 01 February 1913
• Docket Number: 2,006.
• Parties: GIRTON v. DANIELS.
• Court: Supreme Court of Nevada

129 P. 555

35 Nev. 438

GIRTON v. DANIELS.

No. 2,006.

Supreme Court of Nevada

February 1, 1913

Appeal from District Court, Nye County; Mark R. Averill, Judge.

Action by C. W. Girton against W. H. Daniels. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages for breach of contract. The contract as alleged in the complaint was as follows: "That at Tonopah, Nye county, Nev., and on or about November 15, 1910 the plaintiff, defendant, and one R. Krabbenhoff made and entered into an agreement, under and by which it was mutually agreed, that said three named persons should be equal co-owners of a certain mining lease, and should work and develop certain mining claims covered by said lease, situate at Silver Bow, in said county and state; that each should contribute equally towards the expense of said work and business, and should be equal owners, share and share alike in said lease, as well as in any profits arising from said business, and in like manner should pay equally all costs and expenses thereof; that it was further agreed that said three named persons should contribute their own time and labor to said work, or, failing so to do, the one not so contributing should employ a substitute or pay to the persons who did do said work one-third of the total value thereof, to the end that an equal amount of work be either personally done by said persons or its value contributed in cash by each. It was further agreed that, in the event defendant did not personally perform his one-third share of said personal labor, he should either employ a substitute to perform same or that plaintiff and said Krabbenhoff might perform the labor, and that defendant should pay to plaintiff and said Krabbenhoff for each day's work so done by them for the benefit of defendant at the rate of $4 per day per man; that it was further agreed that each of the persons named should advance and pay the costs and expense of employing laborers in addition to the work to be done by said above-named three persons. It was further agreed between plaintiff and defendant that plaintiff should advance and pay the defendant's one-third share of all cash expenditures for labor of employés, and for supplies and disbursements incident to or arising from said work or business during the months of December, 1910, and January, 1911, and that defendant would reimburse plaintiff to the full amount of said one-third share of such advances so made by plaintiff for the use and benefit of defendant."

The court made the following findings in the case:

"(1) That on or about November 29, 1910, the plaintiff and one R. Krabbenhoff were the owners of a certain mining lease dated November 15, 1910, for two years, on seven lode claims, situate in Silver Bow Mining District, Nye county Nev.; that plaintiff owned a two-thirds interest, and said Krabbenhoff a one-third interest; that on or about said November 29, 1910, the plaintiff and defendant entered into an agreement under which defendant was to receive one-half of plaintiff's said two-thirds interest or a one-third interest in the whole lease, and, in consideration thereof defendant was to pay one-third of the expenses of operating it, said expense being limited to the work of three men and necessary cost of supplies for same for the period of work then in contemplation by the parties, to wit, December, 1910, and January, 1911; that, pursuant to said agreement, plaintiff on or about November 30, 1910, delivered an assignment of said one-third interest to said defendant, defendant agreeing to send a man to represent his share of the work or pay the wages of such man, and, in addition thereto, he agreed to bear one-third of cost of supplies for three men and certain other necessary expenditures; that defendant's portion of the expenditures was advanced and fixed by plaintiff; that, instead of three men being out on the work it appears that Girton, who directed the work, employed, including himself and Krabbenhoff, six men, or twice what the agreement called for; that defendant had no notice that the additional three men were to be employed; that the work of the six men and the statement of total expenditures made by plaintiff in evidence is correct, and that said work was valuable and benefited all parties, including the defendant; that Krabbenhoff, prior to commencement of this action, had duly assigned to plaintiff all his interest in the demand sued for. That defendant had a right to withdraw from his venture at any time, thereby releasing himself from liability for subsequent expenditures; that the total expenses of supplies, assaying, and the like for said period was $716.99, and the total amount of wages at $4 per day for 263 days was $1,052, making a total of $1,768.99, from which should be deducted $336.15, total cost of board for men, leaving $1,432.84, of which sum, under foregoing facts, defendant agreed to pay one-sixth or $238.81, and that no part of the same has ever been paid.

(2) The agreement referred to in finding 1 entered into by the defendant was oral, except as...